Monday, January 14, 2008

Louisiana Divorce Laws

Louisiana Divorce Laws

Residency Requirements for Divorce in Louisiana
The spouse filing for divorce must have been a resident of Louisiana for 12 months prior to filing for divorce. The divorce must be filed in the parish of the respondent/defendant, made in writing, signed by the party making it, and registered by the Recorder.
[Louisiana Code of Civil Procedure; Article 42].

Legal Grounds for Divorce in Louisiana


1. No Fault Divorce: That a spouse desires a divorce is a grounds for divorce in Louisiana. There are no requirements to show marital breakdown, fault, living separate and apart, or any other basis for a divorce. After the filing of the petition, the divorce will be granted after a period of 180 days has elapsed from the filing date and if the spouses have lived separate and apart since the filing of the divorce petition. Reconciliation is essentially the only defense to a divorce sought on these grounds.
[Louisiana Civil Code Annotated; Title V, Article 102].
2. General Divorce: In the case of a covenant marriage:
1. That the spouses have been living separate and apart for a period of 2 years or more on the date of filing the petition
2. that the other spouse has committed adultery
3. that the other spouse has committed a felony and has been sentenced to death or imprisonment with hard labor
4. physical or sexual abuse of a spouse or child
5. abandonment for 1 year or more
6. living separate and apart for 1 year or more after a legal separation
[Louisiana Civil Code Annotated; Title V, Article 103 and Louisiana Revised Statutes; Section 9-308].

Legal Separation in Louisiana
The grounds for legal separation (separation from bed and board) in Louisiana are the same as those for divorce from a covenant marriage (with the addition of habitual drunkeness). However, a spouse may petition the court for spousal and/or child support and restitution of separate property during a marriage. This is intended to provide for those spouses who desire to live apart, but not divorce.
[Louisiana Statutes Annotated; Article 9, Chapters 291 and 307].

Simplified/Special Divorce Procedures in Louisiana
The new no-fault divorce grounds in Louisiana are very simplified. No answer need be made by a respondent to a Petition for Divorce filed in Louisiana. In order to obtain a final Judgment of Divorce, a motion entitled "Rule to Show Cause" must be filed with the court. However, each judicial district in Louisiana may have specific individual rules pertaining to divorce actions. Please refer to the Louisiana Rules of Court for the rules in a particular judicial district. Sample forms for use in various divorce case situations (including a sample Petition for Divorce) are contained in Louisiana Forms; Forms 370+.
[Louisiana Civil Code Annotated; Article 102, Louisiana Forms; Forms 370+, and Louisiana Code of Civil Procedure; Articles 3951 to 3956].

Divorce Mediation or Counseling Requirements
If child custody is an issue, the court may require that the parents submit to mediation.
[Louisiana Civil Code Annotated; Article 131 and Louisiana Revised Statutes Annotated; Article 9, Section 351].

Divorce Property Distribution
Louisiana is a "community property" state. A spouse's separate property, consisting of property acquired prior to the marriage and property acquired by gift or inheritance, is awarded to that spouse. The community property is divided equally between the spouses. Personal property necessary for the safety and well-being of the spouse filing for divorce and any children in his or her custody (including food, eating utensils, clothing, and any other items necessary for their safety and well-being) will be awarded to the spouse filing. Either spouse may ask the court for use and occupancy of the family residence pending the final division of the community property. The court bases the temporary award of the family residence on the following factors:

1. The value of each spouse's personal property
2. The economic circumstances of each spouse at the time the division of property is to become effective
3. Needs of the children. In addition, a spouse may be awarded a sum of money for his or her financial contributions made during a marriage to the education or training of a spouse that increased the other spouse's earning capacity

[Louisiana Civil Code Annotated; Article 121 and Louisiana Statutes Annotated; Article 9, Chapter 384].

Alimony and Spousal Support
During the divorce proceeding, either spouse may be ordered to pay temporary alimony. Permanent periodic alimony may be granted to the spouse who is without fault. Such alimony shall not exceed one-third of the other spouse's income. The factors considered are

1. The effect of child custody on the spouse's earning capacity
2. The time necessary to acquire sufficient education and training to enable the spouse to find appropriate employment
3. The income, means, and assets of the spouses and the liquidity of the assets
4. The comparative financial obligations of the spouses
5. The age and health of the spouses
6. The needs of the parties
7. The earning capacity of the parties
8. The duration of the marriage
9. The tax consequences of the parties
10. Any other relevant circumstances

Permanent alimony may be revoked upon remarriage or cohabitation.
[Louisiana Civil Code Annotated; Articles 111 and 112].

Spouse's Name After Divorce
There is no statutory provision in Louisiana for restoration of a spouse's name upon divorce. Case law notes the allowance of resumption of a wife's maiden name. In addition, a person may generally petition the court for change of name.
[Louisiana Statutes Annotated; Article 13-4751 and Louisiana Case Law].

Child Custody After Divorce
Joint or sole custody is awarded based on the best interests of the child. The following order of preference is established:

1. To both parents
2. To either parent [without regard to race or sex of the parents]
3. To the person or persons with whom the child has been living
4. To any other person that the court feels suitable and able to provide an adequate and stable environment for the child

Unless shown otherwise or unless the parents agree otherwise, joint custody is presumed to be in the best interests of the child and will be awarded based on the following factors:

1. Physical, emotional, mental, religious, and social needs of the child
2. Capability and desire of each parent to meet the child's needs
3. Preference of the child, if the child is of sufficient age and capacity
4. The love and affection existing between the child and each parent
5. The length of time the child has lived in a stable, satisfactory environment and the desirability of maintaining continuity
6. The desire and ability of each parent to allow an open and loving frequent relationship between the child and the other parent
7. The wishes of the parents
8. The child's adjustment to his or her home, school, and community
9. The mental and physical health of all individuals involved
10. The permanence as a family unit of the existing or proposed custodial home
11. The distance between the poten-tial residences
12. The moral fitness of the parents
13. Any other relevant factor. The conduct of the proposed guardian is to be considered only as it bears on his or her relationship with the child

The parents must submit a plan for joint custody which designates:

1. The child's residence
2. The rights of access and communication between the parents and child
3. Child support amounts

A parent not granted custody is entitled to visitation rights unless that parent has subjected the child to physical or sexual abuse. The court may order the parents to attend a court-approved parenting seminar.
[Louisiana Civil Code Annotated; Articles 131, 132, 133, and 134, Louisiana Statutes Annotated; Article 9, Section 306, and Louisiana Case Law].

Child Support After Divorce
Both parents are obligated to support any children of a marriage. The factors for consideration listed in the statute are:

1. The needs of the child
2. The actual resources of each parent

In addition, Louisiana has adopted detailed Child Support Guideline provisions which are contained in the statute. These guidelines are presumed to be correct, unless 1 of the following factors make the guidelines unjust or not in the best interests of the child:

1. Extraordinary medical expenses of the child or parent responsible for support payments
2. The permanent or temporary total disability of the parent responsible for support
3. The need for immediate or temporary support
4. An extraordinary community debt of the parents
5. That the combined income of the parents is less than that in the guideline charts
6. Any other relevant consideration

[Louisiana Revised Statutes Annotated; Article 9, Sections 302+].

1 comment:

CPSL said...

Attorney and Law Firm Information and Directory. Find Legal Information, Laws and local Attorneys.

legal advice